Mr Kai Goulter v Auto & General Holdings Pty Ltd & Compare the Market Pty Ltd
[2024] FWC 3483
•13 DECEMBER 2024
| [2024] FWC 3483 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365 - Application to deal with contraventions involving dismissal
Mr Kai Goulter
v
Auto & General Holdings Pty Ltd
&
Compare The Market Pty Ltd
(C2024/6294)
| DEPUTY PRESIDENT BUTLER | BRISBANE, 13 DECEMBER 2024 |
Application to deal with contraventions involving dismissal – application for an order to produce made by Applicant – order made – reasons for decision
Background
This is a matter brought under s 365 of the Fair Work Act 2009 (Cth) (“the Fair Work Act”). The First Respondent is Compare the Market Pty Ltd. The Second Respondent is Auto & General Holdings Pty Ltd. Mr Goulter’s application indicated he worked for the Second Respondent.
In their filed responses, both respondents raised jurisdictional objections in relation to this matter. The First Respondent objected on the basis that Mr Goulter was not dismissed. The Second Respondent objected on the basis that Mr Goulter was not an employee.
On 23 October 2024, Mr Goulter wrote to the Commission in response to the Respondents’ Responses. In that document he appeared to accept the First Respondent had been his employer. He also stated that the Second Respondent may be an associated entity of the First Respondent, and made some assertions in that regard.
On 31 October Mr Goulter filed but did not serve an application for orders to produce, directed to each of the Respondents. The Commission provided a copy to the Respondents on 1 November 2024.
I directed the Respondents to advise if they objected to the application for orders to produce, and, if so, to provide submissions. The Respondents objected and jointly filed submissions in support of their objection, on 11 November 2024.
My chambers indicated to the parties in correspondence that I would mention this matter, to:
(a)hear from the Second Respondent as to whether it pressed its jurisdictional objection in light of Mr Goulter’s material accepting the First Respondent was the employer and asserting the Second Respondent was being named on the basis of being an associated entity;
(b)discuss programming to determine the First Respondent’s jurisdictional objection, and the Second Respondent’s if pressed.
My chambers further indicated that I proposed to hear from the parties on these issues before deciding the Applicant’s application for orders to produce.
I mentioned this matter on 4 December 2024. All parties appeared, along with the Respondents’ legal representative. I had previously granted permission for the Respondents to be legally represented.
The parties confirmed at the mention that it is common ground that the First Respondent is the former employer. The First Respondent indicated it would press its jurisdictional objection.
The Second Respondent indicated it would press its jurisdictional objection; it also indicated an intention to apply to be removed from the proceedings.
The parties agreed at the mention that this application for orders to produce should be determined on the papers. I indicated I would determine it before issuing further directions to deal with the jurisdictional objections. I would deal with those objections sequentially, starting with the First Respondent’s.
Legislative framework
The Commission can inform itself by, among other things, ordering production of documents, records or information.[1] Orders can be made on application or on the Commission’s own initiative. If made on application, the Commission can grant the order in a varied form.
This application for orders to produce
In summary, Mr Goulter is applying for orders that the two corporate entities produce:[2]
(a)all records relating to witness statements of seven named persons, in a workplace investigation arising from a complaint Mr Goulter made on 21 August 2024 (“the complaint of 21 August”); and
(b)all records relating to an alleged incident involving another person recording audio of Mr Goulter without his consent (“the alleged recording incident”).
In summary, the grounds for the application are:
(a)the workplace investigation is relevant to the substantive proceedings, and the records regarding it will assist the Commission in deciding whether the Respondents conducted the investigation appropriately; and
(b)an alleged failure to investigate the recording incident is relevant to the substantive proceedings, and the records regarding it will assist the Commission in deciding whether the Respondents failed to act upon company policy by failing to investigate or failing to discipline the other person involved. The applicant also says, in this regard, that covertly recording someone may be a valid reason for dismissal.
In summary, the Respondents oppose the order on the grounds that:[3]
(a)the documents sought may be relevant to the substantive general protections claims but are not relevant to the question of whether the applicant was forced to resign by the employer’s conduct;
(b)the Commission’s present task is to decide whether the applicant has been dismissed.[4] The application is premature; and
(c)the description of the records sought, in relation to the alleged recording incident, lacks specificity. To the extent it relates to the alleged recording incident the application is a fishing expedition.
The Respondents also submit the proposed order is directed to the corporate Respondents rather than a proper officer.
Consideration
To power to make an order to produce is a discretionary power. Various factors can guide the exercise of the discretionary power.[5]
The Respondents submit that the Commission can balance different factors in deciding an application for an order to produce. [6] One of the considerations they refer to is whether the order serves “a legitimate forensic purpose, that is, whether the documents sought have an apparent relevance to the issues.”[7]
To consider apparent relevance, it is useful to briefly describe the issue presently before me. In deciding the First Respondent’s jurisdictional objection I will need to decide whether Mr Goulter was dismissed. Relevantly, a person has been dismissed if: [8]
(a)their employment has been terminated “on the employer’s initiative;”[9] or
(b)they were forced to resign because of the employer’s conduct.[10]
Mr Goulter’s substantive general protections application refers to:
“Constructive dismissal due to insufficient steps taken to investigate an incident of slander occurring on 20 August 2024, and following inactions of the employer to intervene in perceived business wide vilification and threatened action and organization against the employee.
…
The incidents of slander, vilification, and threatened action and organization against the employee has impacted my long-term psychological conditions, contributing to the constructive dismissal.
…
The employer had reprimanded the applicant twice for taking temporary absences from work to attend to legal matters as well as recovering from mental illness impacts of the incident of slander and hostile workplace environment which contributed to the constructive dismissal.
He attached to his substantive application a statutory declaration regarding alleged events of 20 August 2024. He also attached a document titled “Statement of Events” which refers to the alleged events of 20 August, and of subsequent days. That attachment says the following about the alleged recording incident:
From the 20th to 29th of August, the workplace harassment continued throughout, perpetrated by the vast majority of the organization in passing. A trainee named Pierce had also recorded me performing duties on the sales floor without my prior consent or knowledge, only finding out after the fact when returning to the training room when he had revealed his phone from his pocket and was in recording mode. This is a breach of company policy as well due to protecting customer data, this was reported to the General Manager and the Sales manager, but no action was taken to my knowledge.
The second last paragraph of the attachment to his substantive application states:
Due to the threats of violence and the constant accusatory nature of interactions at the organization, I informed my manager on the 31st of August that I was resigning and describing my experience at Auto & General, effective immediately, via text message that the SMS network confirmed had been received. HR called and left a voicemail on the 2nd of September asking for my location as they had stated were concerned for my well-being, and expecting me to come into work. When I informed them I had texted the manager that I resigned, they denied the manager had received those details and asked me to send the text message via email to their HR inbox, to which I refused.
It is common ground that the employment ended on 2 September 2024.
Having regard to the foregoing, the employer’s conduct prior to the employment coming to an end is squarely in issue in deciding the First Respondent’s jurisdictional objection.[11] “Conduct” includes omission.[12]
Accordingly, the records requested are apparently relevant to determining the jurisdictional objection. I do not accept the application is premature.
I accept that an order to produce should be made.
However, I accept the Respondent’s submissions that Mr Goulter’s request for the second category of records, those relating to the alleged recording incident, is not sufficiently specific. I also accept that any order should be addressed to “the Proper Officer” of each corporate respondent.
A separate order should be made for each respondent. The scope of the orders should be expressed clearly. It is not necessary to include “held by” in the orders as the orders will apply only to records in the Respondents’ possession, power or control.
The application for an order to produce is granted, but in a varied form. I make orders in the terms issued separately.
DEPUTY PRESIDENT
[1] Fair Work Act 2009 (Cth) s 590(1),(2)(c) (‘Fair Work Act 2009’).
[2] Application of 31 October 2024.
[3] Respondent’s submissions of 11 November 2024, p 2.
[4] Relying on Coles Supply Chain Pty Ltd v Milford [2020] FCAFC 152, [64].
[5] Esso v “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU), Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU)[2017] FWCFB 2200, applied, and discussed, in Association of Professional Engineers, Scientists and Managers, Australia v Great Southern Energy Pty Ltd T/A Delta Coal, Whitehaven Coal Mining Ltd, Peabody Energy Australia Coal Pty Ltd, Ulan Coal Mines Ltd[2024] FWCFB 106, [24]-[26].
[6] Respondent’s submissions of 11 November 2024, [4], relying on Kelvin Gorrie v Greensphere Pty Ltd T/A Multihull Solutions[2021] FWC 4664.
[7] Respondent’s submissions of 11 November 2024, [4(a)], relying on Clermont Coal Pty Ltd v Brown [2015] FWCFB 2640, [19].
[8] See Fair Work Act 2009 ss 365, 12, 386.
[9] Fair Work Act 2009 s 386(1)(a).
[10] Fair Work Act 2009 s 386(1)(b).
[11] Bupa Aged Care Australia Pty Ltd T/a Bupa Aged Care Mosman v Shahin Tavassoli[2017] FWCFB 3941; 271 IR 245, [47]-[48].
[12] Fair Work Act 2009 s 12; see also Explanatory Memorandum to the Fair Work Bill 2008, [1530].
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